Child support is the amount paid by the non-custodial parent to the custodial parent in support of the child(ren)'s every day needs. If there are extraordinary expenses for the child(ren) then those expenses are added in to the child support amount through deviations.
Can the parents agree to waive child support?
No, by law, the parents cannot agree to waive child support. Child support is the financial property right of the child and cannot be waived by either parent because it belongs to the child. Child support is set by law through "guidelines" that is based on the total income of the parents and the percentage of each parent's contribution to the total income. While child support cannot be waived, it can be reduced through deviations for a number of factors, such as low income, high income, travel distance to visitation, or other deviations as long as the court believes they are in the child's best interests and that the deviation will not harm the child(ren).
What is a child support modification?
Child support modification is the only legally binding tool available to parents when either party seeks an increase or decrease in child support. Child support modifications are lawsuits that must be filed in the county where the defendant lives, and can be filed when one of the following things occurs:
i. Either parent has a reduction in income and financial status through no fault of their own;
ii.Either parent has an increase in income and financial status that is not through inheritance;
iii. When the bona fide needs of the child change.
Needs of the child are not defined as any need, it is only an essential need, such as educational needs, medical or psychological needs, of other extraordinary expenses. Increases in extracurricular activities, college preparation expenses, driving expenses, allowance, clothing, school supplies and other every day expenses are not a basis for a child support modification.
Needs of the child includes a child turning the age of 18 or graduating high school, whichever is later. This is called "aging out" and is grounds for an automatic modification. However, if the paying parent fails to file for a modification, and simply stops paying support, then they could be held in contempt for the portion of the money not paid to the remaining children unless the child support order includes a tier down to account for the child when they "age out."
Is a modification by agreement with the other parent binding?
If you need an increase or decrease in child support, then do not rely on a verbal or written agreement with the other parent as such an agreement is not binding. If the custodial parent agrees to eliminate child support or reduce child support without a court order, then it is not enforceable, and the party who relies on the agreement will owe the full amount of the child support order.
For example, if the mother pays child support to the father at $500.00 per month and there are three years left on the current child support order, then the total owed by the mother is $9,000.00. If the mother needs a child support reduction, and the father agrees to reduce the child support to $250.00 per month, then this puts the mother at risk if she chooses to make the lesser payment. The mother is required to pay the full amount of the child support order unless she obtains a new order, signed by a superior court judge. If the mother pays the $250.00 per month instead of the $500.00, then the father could file a motion for contempt against the mother for failure to pay the $4,500.00 she owed in addition to the $4,500.00 she paid. While the mother could argue to the judge that she relied on their "agreement" and avoid being held in contempt, the court will hold the mother liable for the full amount of the order, not the "agreement" with the father.
Remember that the only safe way to modify child support is to obtain a court order through a child support modification.
Obtaining an order for child support modification
To obtain a child support modification, the parent seeking the modification must file a lawsuit in the superior court of the county where the other parent lives.
Child support modifications can be filed pro se, meaning by any person acting as their own lawyer, but because of the complexity of the process and the documents required, then it is best to consult an attorney for assistance.
How often can I file for a modification of child support?
A child support modification can be filed by either parent at any time after an initial order is obtained. Initial orders are obtained in a divorce or legitimation/custody matter.
After the first modification order is obtained, then the party filing the modification must wait two years after the order is signed and entered by the judge before filing for another modification.
Exceptions to the two year rule: if you lose your job, or your income is reduced by 25% or more, then Georgia law gives you the right to immediately file a petition to modify your child support obligation.
Out of work parents
In addition to being able to file for an immediate modification of child support, the out-of-work parent gets another advantage in that their child support obligation will stop accruing at the original rate once the request for modification is served on the other parent.
The portion of the paying parent's child support obligation attributable to the lost income will not accrue (meaning that debt will not continue to pile up) as soon as the other parent is served.
Fault for a decrease in child support
If the parent seeking the change in child support is deemed to be at fault for the decrease in income or financial status, then the court will likely not grant the child support modification.
Fault includes the following:
i. Incarceration in detention or prison;
ii. Termination from employment for misconduct, performance, or cause;
iii. Parent's failure to exercise court ordered visitation;
iv. Underemployment, meaning a parents willful effort to make less money then their potential provides for in the current economic climate, or a parents failure to look for and secure suitable employment when said employment is available to them.
Increase in income without a substantial change in financial status
In an action to modify child support, a parent must establish that there has been a substantial change in the income and financial status of either parent since the date of the most recent support order.
Financial status means that the parent who received the increase in income must have a change a substantial change in statue because of the income, which does not always happen just because someone gets a raise. In these instances the amount of the raise is one factor, as well as the remaining expenses of the parent who received a raise.
New spouse's income
If the party seeking the child support modification can prove that the remarriage of the other party resulted in a substantial improvement in their income and financial status, there is a possibility that your child support obligation could be increased.
This is not because the child support guidelines consider the new spouse's income, but that the new spouse's income helps offset household expenses, thus creating a "change in financial status."
If one parent remarries and has a new child(ren) with their spouse, then that child(ren) is considered "qualified" for the purposes of the parent who pays child support receiving a "deviation" to offset the expenses for all of their children.
The "deviation" is not automatic. If the judge does not accept the deviation, then they will not grant a reduction of child support.
While a new child could create a "change in financial status" it alone will not be enough to qualify a parent for a modification in child support, as they will also have to show a change in income.
Failure to exercise court ordered visitation
If the non-custodial parent fails to exercise court ordered visitation, then the custodial parent is eligible to seek a modification of child support.
Future adjustments and child support tiers
While the court cannot order child support to be tiered up or down in a final order, the parties can agree that if certain circumstances occur(such as increases in income or a child becoming of age) that the child support will automatically increase or decrease.
In these circumstances, the parties must include child support worksheets for each tier of support to show what the child support should be in accordance with the law.
Court ordered contributions to college expenses
The court cannot order a parent to contribute to a child's college expenses.
Parties agreeing to college expenses
The parties at any time may agree to contribute to college expenses. If the parties make this agreement, then the judge will sign the order with the agreement contained in the order, thus making it enforceable through the contempt powers of the court.
If the court signs an order, then it is only modifiable if both parents later agree to modify this term. Thus, a party must be very careful before agreeing to pay these expenses as it is very difficult to modify this agreement once it is made.
If my child(ren) moves into my home then can I stop paying child support?
No. You must continue to pay child support until you obtain a court order modifying child support.
In this situation, it is quite likely that the court will terminate your child support obligation once you make the appropriate motion for a modification.
Can child support be applied retroactively?
No, the law prohibits a retroactive application of child support. However, child support does stop accruing for the paying parent who loses their job at no fault of their own as soon as the other party is served a copy of the lawsuit to modify support.
It is essential that a petition to modify child support be filed as soon as possible if you lose your job and that it is served upon the other party immediately.
It is the responsibility of the party seeking the modification to request the court to alleviate their child support obligation as it is not automatic.
Who pays attorney fees?
The law sets forth that the prevailing party "may" award attorney's fees to the "prevailing" party. The amount awarded is not automatic and the requesting party must not only show that they prevailed but that the other party is able to pay. In this instance, the amount paid is "discretionary" and the judge may or may not order the opposing party to pay fees.
In the case of a modification of custody based on the other parent's failure to exercise visitation, then if the custodial parent wins in this type of case, the statute says that the court "shall" award fees.
Automatic reductions of child support?
When a child turns 18 or graduates high school (whichever is latest), then the paying parent is entitled to a modification of child support.
However, only a court can modify your child support obligation. While a court would likely reduce your obligation when a child graduates, you must ask the court to lower the obligation.
This informational guide was prepared by the Law Offices of Caryn S. Fennell, P.C. to assist clients and members of the general public in understanding the major elements and issues related to child support modifications in Georgia.
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